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Cases Concerning the Convention for the Conservation of Southern Bluefin Tuna

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Cases Concerning the Convention for the Conservation of Southern Bluefin Tuna CASES CONCERNING THE CONVENTION FOR THE CONSERVATION OF SOUTHERN BLUEFIN TUNA GOVERNMENT OF JAPAN MEMORIAL ON JURISDICTION OUTLINE Paragraph No. PART ONE INTRODUCTORY MATTERS.....................................1-14 I INTRODUCTION............................................................................................1-8 II JAPAN’S PARTICIPATION IN THE PRESENT PROCEEDINGS.................... 9 III EARLIER CONSIDERATION OF THE MATTER BY THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA ................ 10-14 PART TWO THE FACTS................................................. 15-98 IV CATCHING SBT AND EARLY EFFORTS AT CATCH LIMITATION..... 17-19 V THE ADOPTION OF UNCLOS, 1982, AND OF CCSBT, 1993 .................. 20-36 A. UNCLOS, 1982 ................................................................................ 22-28 B. CCSBT, 1993.................................................................................... 29-36 VI THE CCSBT DISPUTE SETTLEMENT PROVISIONS AND THEIR PREPARATORY WORK ................................................................ 37-48 VII CCSBT AS THE SOLE FRAMEWORK WITHIN WHICH AUSTRALIA, JAPAN AND NEW ZEALAND HAVE SINCE 1993 EXCLUSIVELY DEALT WITH SBT AS SHOWN IN ACTIVITY IN THE COMMISSION, DIPLOMATIC CORRESPONDENCE AND OTHER CONDUCT OF THE PARTIES ............................................ 49-96 A. Activity in and of the Commission, 1994-1997 ................................. 50-59 B. Diplomatic Correspondence and Related Matters, February-October 1998 ..................................................................... 60-76 (1) Message from the Australian Energy and Resources Minister, 25 February 1998......................................................... 60 (2) Reply from the Japanese Minister of Agriculture, Forestry and Fisheries, 30 March 1998..................................................... 61 (3) Further exchanges, May-August 1998.................................... 62-67 (4) A/NZ notes and announcements, 31 August- 1 September 1998.................................................................. 68-71 (5) Japan’s reply, 9 September 1998................................................. 72 (6) A/NZ notes, 10 and 11 September and NZ Aide Memoire, 1 October 1998 ............................................. 73-76 C. Discussions Within and Connected to the Commission of the CCSBT, December 1998-May 1999........................................ 77-85 (1) Negotiations under Article 16(1) of the CCSBT, December 1998 .......................................................................... 77 (2) The EFP Working Group, February-May 1999 ...................... 78-81 (3) Informal bilateral Meeting between Australia and Japan, April-May 1999.......................................................................... 82 (4) Fifth Annual Meeting of the Commission, May 1999 ............ 83-85 D. Commencement of the EFP, 1 June 1999 ............................................... 86 E. Renewed Exchanges, June-July 1999 ................................................ 87-93 (1) A/NZ protests, 7 and 8 June 1999 ............................................... 87 (2) Japanese responses, 15 and 16 June 1999.................................... 88 (3) A/NZ notes, 23 and 24 June 1999 ............................................... 89 (4) Japan’s mediation proposal and A/NZ reply, June 1999.............. 90 (5) Japan’s notes of 2, 9 and 14 July 1999................................... 91-93 F. The Commencement of Arbitration Proceedings under UNCLOS by A/NZ, 15 July 1999 ..................................................... 94-96 VIII ABSENCE OF PROCEEDINGS AGAINST INDONESIA AND THE REPUBLIC OF KOREA........................................................................... 97 IX CONCLUSION OF THIS PART....................................................................... 98 PART THREE GROUNDS OF CHALLENGE TO THE JURISDICTION ............ 99-181 X INTRODUCTION—THE DISPUTE ARISES FROM THE CCSBT AND CANNOT PROPERLY BE REFASHIONED AS A DISPUTE THAT ARISES FROM THE UNCLOS...................................................... 99-115 ii A. The True Character of the Dispute................................................... 99-109 B. Jurisdictional Identification of the Real Dispute ............................ 110-115 XI THE CCSBT IS A LEX SPECIALIS ......................................................... 116-131 A. The Relationship of CCSBT and UNCLOS................................... 116-120 B. Lex Specialis in International Law................................................. 121-126 C. Lex Specialis and Successive Treaties ........................................... 127-131 XII THE CCSBT STIPULATES THE DISPUTE SETTLEMENT PROCEDURE THAT ITS PARTIES MUST FOLLOW........................... 132-169 A. The CCSBT Provisions ................................................................. 132-136 B. The CCSBT Dispute Settlement Provisions as One of Many Examples of Post-UNCLOS Treaties Not Adopting UNCLOS Procedures .................................................................................... 137-145 C. UNCLOS Part XV Does Not Permit the Submission of the Present Dispute to an Annex VII Tribunal..................................... 146-156 D. There Is No Genuine Dispute under UNCLOS .............................. 157-169 XIII THIS TRIBUNAL HAS NO JURISDICTION OVER DISPUTES THAT CONCERN ONLY CUSTOMARY INTERNATIONAL LAW WITHOUT REFERENCE TO UNCLOS......................................................... 170 XIV THE MATERIAL ISSUE OF THE DISPUTE DOES NOT CONCERN LEGAL RIGHTS OR DUTIES UNDER UNCLOS OR EVEN UNDER THE CCSBT—THIS TRIBUNAL CANNOT APPROPRIATELY BE SUBSTITUTED FOR THE CCSBT MECHANISMS .............................. 171-181 SUBMISSION ............................................................................................................ 182 iii MEMORIAL ON JURISDICTION PART ONE INTRODUCTORY MATTERS I INTRODUCTION 1. This Memorial on Jurisdiction sets out Japan’s contentions that the present Tribunal has no jurisdiction to entertain the proceedings against Japan commenced by Australia and New Zealand separately by Statements of Claim dated 15 July 1999. (When referred to together, Australia and New Zealand will hereinafter be referred to as “A/NZ”). A/NZ have invoked the jurisdiction of the Tribunal under Article 286 of the United Nations Convention on the Law of the Sea, 1982 (hereinafter referred to as “UNCLOS”).1 2. The dispute to which A/NZ claim that the proceedings relate is connected with the fishing activities of the three States for a species of tuna called “southern bluefin tuna” (“SBT”). A/NZ assert in their Statements of Claim that the conduct of Japan violates three categories of legal obligation: UNCLOS (in particular Articles 64 and 116-119); the terms of the Convention for the Conservation of Southern Bluefin Tuna, 1993 (“CCSBT”)2; and general international law. The central point in the claim is that Japan’s commencement of an experimental fishing programme (“EFP”) without the 1 The procedural documents prior to the ITLOS decision (see paras. 10-14 below) will be found in the Dossier of those proceedings. Australia and New Zealand each began proceedings against Japan by separate Notifications and Statements of Claim under UNCLOS, Annex VII, Article 1. By an Order of the President of ITLOS of 16 August 1999, the proceedings for provisional measures on these two requests were joined. As the competence of ITLOS does not extend beyond making an order prescribing provisional measures pending the constitution of the present Tribunal, it would appear that the order for joinder of the two cases is now exhausted and that, therefore, an act of the present Tribunal is required to effect the joinder of these arbitral proceedings. If A/NZ so apply, Japan would have no objection to such joinder, provided that it does not affect the individual responsibilities of Australia and New Zealand. In the meantime, pending such an order, Japan will proceed, without prejudice to its objections to jurisdiction, as if the Tribunal had already made it and hopes that this course will prove convenient and acceptable to the Tribunal. consent of Australia and New Zealand is unlawful.3 Japan asserts that it was entitled to initiate its EFP, and indeed bound to do so, in order to discharge its obligations concerning the conservation and optimum utilization of southern bluefin tuna. At the core of the dispute is a disagreement between the Applicants and Japan over the evaluation of scientific evidence concerning the current state and recovery prospects of those stocks and the means by which the scientific uncertainty can best be reduced. 3. As will presently be seen, the dispute is not one about the application of UNCLOS. It is, rather, a dispute about the implementation of the CCSBT. This is not merely a semantic distinction. It is one which has a real and direct bearing not only upon this Tribunal’s jurisdiction but also, if (contrary to Japan’s contention) the Tribunal were to find that it has jurisdiction, upon the identification and consideration of the substantive issues in the case. In contrast with UNCLOS, the CCSBT contains no provision for the compulsory settlement of disputes relating to its application, whether by this tribunal or any other, in the absence of the express consent of the Parties. The CCSBT is in this respect identical with Article XI of the Antarctic Treaty4, Article XXV of the Convention on the Conservation of Antarctic Marine Living Resources (“CCAMLR”)5 2 Annex 1. 3 See the
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